Senate Judiciary Committee Passes Bill to Stop Irrelevant Disclosures of Immigration Status in Open Court

SB 785 – authored by Senator Wiener and Assemblymember Gonzalez Fletcher -- prevents attorneys from questioning witnesses about their immigration status in open court unless a judge first rules that the status is relevant to the subject of the litigation
July 18, 2017

Sacramento –  Today the Senate Judiciary Committee approved a bill by Senator Scott Wiener (D-San Francisco) and Assemblymember Lorena Gonzalez Fletcher (D-San Diego) to protect immigrants from irrelevant disclosures of their immigration status in open court. SB 785 requires that any discussion or questioning about the immigration status of any witness, victim, or defendant first be deemed by a judge to be relevant to the subject of the litigation. This preliminary judicial determination will prevent disclosure of immigration status, which can deter and chill witnesses from coming forward to testify in both criminal and civil cases. SB 785 now goes to the full Senate for a vote. 

SB 785 passed the Judiciary Committee by a vote of 5-1, with Senators Hannah-Beth Jackson (D-Santa Barbara), Bob Hertzberg (D-Van Nuys), Bill Monning (D-Carmel), Henry Stern (D-Canoga Park), and Bob Wieckowski (D-Fremont).  It previously passed the Public Safety Committee by a vote of 5-2 in May.

“California’s courts are houses of justice, not ad hoc detention centers where ICE agents can round up law-abiding immigrants,” said Senator Scott Wiener. “Our immigrant neighbors should not be fearful of coming forward to testify or serve as witnesses, especially when they themselves have been victims of crimes. This bill puts public safety first, regardless of immigration status, which is how we will keep our communities safe.”

SB 785 bars any reference to immigration status in court, unless it is first determined to be admissible. To establish admissibility, an attorney must persuade a judge in a private, in camera hearing before raising the issue in open court. The judge will then determine whether to allow the issue to be raised.

This bill is sponsored by San Francisco District Attorney George Gascon, and supported by the Coalition for Humane Immigrant Rights, Californians for Safety and Justice, PICO California, Bay Area Legal Aid, San Francisco’s Department of the Status of Women, Equal Justice Society, San Francisco Domestic Violence Consortium, Tahirih Justice Center, San Diego La Raza Lawyers Association, Mixteco/Indigena Community Organizing Project, and the YWCA – Glendale.  

Recently, California’s Chief Justice Tani Cantil-Sakauye said in a letter to Attorney General Jeff Sessions and Secretary of Homeland Security John Kelly, “Our courthouses serve as a vital forum for ensuring access to justice and protecting public safety. Courthouses should not be used as bait in the necessary enforcement of our country’s immigration laws.” (FULL LETTER)

However, when individuals come forward to participate in court cases as victims or witnesses, some attorneys are raising their immigration status, even when that status is not relevant to the facts of the case. This creates a chilling effect, which can prevent victims and witnesses from coming forward, as Immigration and Customs Enforcement officials can use these proceedings to identify and locate individuals targeted for deportation. Recent news accounts in California and New York have reported that ICE agents have been showing up in Courts, monitoring trials, and making arrests.

This act amends a portion of the Evidence Code that was set by the voters in 1982, so to amend it requires a 2/3 vote by the legislature. SB 785 also includes an urgency statute, which will make it effective immediately once the Governor signs the legislation.